Has WikiLeaks Actually Done Anything Illegal?

The cyber-noose is tightening around Wikileaks: Visa has joined the list of corporations that will no longer allow its users to send payments to the organization, which is looking for funding support as it continues to release thousands of classified U.S. diplomatic cables. MasterCard has done the same, and so has online payment service PayPal. All three have said they have legal concerns about dealing with WikiLeaks — but is there any real justification for this? Not really. In fact, it’s not clear that what WikiLeaks is doing is even illegal.

As media analyst Jeff Jarvis and others have pointed out, Visa and MasterCard and other payment services allow online users to send funds to a wide range of questionable entities, including sites that offer pornography. So why are they so concerned about WikiLeaks? Visa said that it had suspended support for payments to WikiLeaks while it “investigates” the organization, while MasterCard said that its rules prohibit customers from “directly or indirectly engaging in or facilitating any action that is illegal.” PayPal also said its terms of use prevents the service from being used to “encourage, promote, facilitate or instruct others to engage in illegal activity.”

Needless to say, the phrasing of those rules casts a pretty wide net — not just engaging in illegal activity, but encouraging it or instructing others in how to engage in it. But do even these broad rules apply to what WikiLeaks is doing? It’s not clear that they do. All the organization has done is to publish classified documents that originally belonged to the U.S. government — something that may be uncomfortable and embarrassing, but is not obviously illegal (even the Justice Department doesn’t seem too sure about whether WikiLeaks is guilty of anything). The only obvious crime that was involved in the release of those diplomatic cables was committed by the person who originally took them, since doing so is an offense under the U.S. Espionage Act.

Publishing those documents is not illegal — or at least, not yet, which is why Senator Joe Lieberman (I-Conn), the chairman of the Homeland Security and Governmental Affairs committee, has put forward his proposed SHIELD law (which stands for Securing Human Intelligence and Enforcing Lawful Dissemination), which would make it a crime to publish leaked classified information if doing so endangered U.S. agents or was otherwise not in the national interest. And this law would not just apply to WikiLeaks, but potentially any mainstream or online publication or media outlet that chose to publish any of the information, since — as I have tried to argue before — WikiLeaks is effectively a media entity.